Driscoll v DM Developments Pty Ltd
[2013] QDC 29
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- Unreported Judgment
- Driscoll v DM Developments Pty Ltd[2013] QDC 29
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Driscoll v DM Developments Pty Ltd[2013] QDC 29
Driscoll v DM Developments Pty Ltd[2013] QDC 29
DISTRICT COURT OF QUEENSLAND
CITATION: | Lee John Driscoll v DM Developments Pty Ltd [2013] QDC 029 |
PARTIES: | LEE JOHN DRISCOLL (Appellant) And DM DEVELOPMENTS PTY LTD (Respondent) |
FILE NO/S: | 3075/12 |
DIVISION: | Appellate |
PROCEEDING: | Appeal from Magistrates Court |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 25 February 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 February 2013 |
JUDGE: | Robin QC, DCJ |
ORDER: | Appeal dismissed with costs to be assessed if not agreed |
CATCHWORDS: | Uniform Civil Procedure Rules 1999r16 r144 Appeal from Magistrate’s decision to stay a claim - Claim in substance identical with a counterclaim by the plaintiff (defendant in an earlier proceeding) - In that proceeding judgment was given against the defendant for rent claimed and his counterclaim was dismissed pursuant to a “guillotine” order when he failed to make disclosure as required by the order - Whether new claim an abuse of process |
COUNSEL: | C Stevenson (Solicitor) for the appellant/plaintiff N Jarro for the respondent/defendant |
SOLICITORS: | Ace Solicitors for the appellant/plaintiff Robert Bax and Associates for the respondent/defendant |
- [1]Mr Driscoll appeals against a Magistrate’s ordering a stay of his claim M1328/20012 filed 8 February 2012. The order was made under r 16(g) of the Uniform Civil Procedure Rules. The appeal was started by a Notice of Appeal Subject to Leave; it came a day late - as to which the respondent company (defendant in the claim) takes no point. To the extent leave is required, Mr Driscoll may be taken to have it.
- [2]In Mr Driscoll’s proceeding, the company had filed a Conditional Notice of Intention to Defend under r 144 disputing the Magistrate’s Court’s jurisdiction and the regularity of the claim on basis of the plaintiff’s being estopped by reason of the dismissal of his counterclaim in proceeding N1192/2009 (Beenleigh). For practical purposes the claim and that counterclaim are identical; the new claim adds to the original counterclaim for some $131,719.98 a further $20,000 for alleged loss of use of a motor vehicle allegedly promised to Mr Driscoll as additional consideration for work he did to earn the aforementioned sum and $27,200, being an amount for rent of premises let to him by DM Developments Pty Ltd, the plaintiff in 1192/2009, now defendant in 1328/2012. Notwithstanding the differences noted, by way of further claims, I took it to be accepted by Mr Driscoll’s solicitor advocate, Mr Stevenson, that the claims were the same for practical purposes. The counterclaim had pleaded entitlement to the vehicle.
- [3]The dismissal of the counterclaim occurred by the same order that gave judgement in favour of the company for that amount of rent. Mr Driscoll pleads that free use of the premises was another part of the emoluments due to him for the work. The statement of claim seeks $178,990.98 damages for breech of contract, alternatively $131,790.98 damages for unjust enrichment. The claim, however, asks for $150,000 under either or both of those heads, conformably with the jurisdictional limit.
- [4]The company’s application under r 16 was made to satisfy r 144(4). This procedure granted to the Magistrate a discretion as to whether to make any of the orders contemplated in r 16 (“Setting aside originating process”), assuming of course that sufficient grounds were established to give rise to the discretion. As to this, see Imagetic Pty Ltd v Gosley-Fuller [2012] QDC 015 at [12]-[17]; this is the most recent of many decisions relevant to r16 collected in the helpful annotations in the ELegals Litigators’ Toolkit, to which my Associate has drawn my attention and expresses a view of the wide application of the rule, with which I would agree.
- [5]In these circumstances, where abuse of process arguably appears, the present appeal becomes one against the exercise of a discretion, a crucial factor here. The issue is not how I would or might have exercised the discretion, even though the appeal is by way of “re-hearing” (r 765, applied by r 783), but whether the Magistrate’s decision came within the scope of a proper exercise of discretion. Mr Jarro illustrated the notion by references to Atkinson v Atkinson [1969] VR 278 and Fire and/All Risks Insurance Company Ltd v Rousianos (1989) 5 ANZ Insurance Cases 60-909 at 75,829. The parties accepted as an accurate description of the situation the following passage from the reasons in JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272: -
“[8]The ordinary characteristics of an appeal by way of rehearing are well established. It is necessary for the appeal court to make up its own mind on the basis of the findings of primary fact made at the previous hearing, unless those findings are set aside in accordance with the established principles, but it is necessary for the appellant to show that the decision under appeal was wrong. Where the appeal is from the exercise of discretion, that involves showing that there was an error of principle in the exercise of the discretion, or that the discretion miscarried, in that the result was manifestly inappropriate.”
- [6]At the end of the day, my conclusion is that the discretion to order a stay under r16(g) did arise and that none of the conditions justifying interference with her Honour’s manner of exercising it appear.
- [7]The story presented to the court is relatively complicated. Mr Jarro’s outline of argument filed 3 October 2012 contains a useful chronology:
Date | Event |
03.09.09 | On 3 September 2009 DM Developments Pty Ltd filed a claim and statement of claim (Claim M1192/2009) seeking damages for unpaid rent against Driscoll |
12.04.10 | Driscoll filed a defence and counterclaim |
24.04.10 | DM Developments Pty Ltd filed a reply and answer |
31.08.10 | Magistrate Morgan orders Driscoll to provide further and better particulars to defence and counterclaim |
22.09.10 | Driscoll filed application to set aside order of Magistrate Morgan. Application returnable on 12.10.10 |
24.09.10 | DM Developments filed application seeking judgment against Driscoll and that his counterclaim be dismissed. Application returnable on 12.10.10 |
12.10.10 | Magistrate McDougall made a guillotine order against Driscoll in the event he failed to take certain steps by 29 November 2010 |
29.11.10 | Driscoll failed to comply with Order of Magistrate McDougall |
30.11.10 | Default judgment obtained – Driscoll ordered to pay the sum of $27,200; his counterclaim was dismissed |
03.02.11 | Magistrate Hutton dismissed Driscoll’s application to set aside the Order dated 30 November 2010 |
10.03.11 | Driscoll lodges Notice of Appeal in the District Court of Queensland against the decision of Magistrate Hutton dated 3 February 2011 |
31.05.11 | Federal Magistrate Burnett finds Driscoll has committed an act of bankruptcy and adjourned application for Sequestration Order pending Driscoll’s District Court appeal |
02.12.11 | Judge McGill SC dismissed Driscoll’s appeal with costs |
08.02.12 | Bankruptcy matter returns before FM Burnett who adjourns application for Sequestration Order as Driscoll files current claim in Magistrates Court |
24.02.12 | Conditional Notice of Intention to Defend filed |
07.03.12 | Application to stay Driscoll’s claim filed |
03.04.12 | Application to stay heard before Magistrate Springer |
10.07.12 | Decision of Magistrate Springer – Appellant’s claim stayed for abuse of process |
08.08.12 | Current appeal filed |
It is appropriate to say more about some of the events listed. Judge McGill’s decision was not appealed. The evidence before her Honour on 3 April 2012 was limited to an affidavit sworn 6 March 2012 of Ms Thorp, sole director of the company, having replaced one Mr Morteza Kashani-Malaki in that role[1].”
- [8]On the present appeal some reference was made to a later affidavit of hers filed 19 February 2013. The former affidavit exhibits a certified transcript of proceedings before McDougall M on 12 October 2011. On that occasion Mr Driscoll sought the setting aside of the order of Morgan M, which was made on 30 August 2011 in the following terms:
“THE ORDER OF THE COURT IS THAT:
- That pursuant to rule 371(s)(f) of the Uniform Civil Procedure Rules 1999, the Defendant discharge his own obligation to disclose documents as required by rules 211 and 214 of the Uniform Civil Procedure Rules 1999.
- That pursuant to rule 161 of the Uniform Civil Procedure Rules 1999, the Defendant provide such further and better particulars of the Counterclaim filed 12 April 2010, as requested of him, under cover of letter dated 12 July 2010 (Exhibit “TT2” to the Affidavit of Tracy Eliza Thorp, sworn 5 August 2010).
- That the Defendant complies with orders 1 and 2 above within 7 days of the date of this order.”
He contended that he had not received the underlying application, “served” well in advance, until later the same day when he cleared his Post Office box, which constituted his address for service, an arrangement that often proves unsatisfactory. The company had sought an order that a residential or business address be provided which Kucks AM refused on 17 June 2010 on the basis of “the defendant’s fears for his safety”. See the transcript for that day which, as exhibit 1, was the only evidence tendered by Mr Stevenson, representing Mr Driscoll’s interest, before me. The point of the tender was to seek to justify the obliteration from bank statements subsequently disclosed by Mr Driscoll under compulsion of virtually all detail except for deposits and balances (opening and brought forward at the top and bottom of each page). It was suggested that details of withdrawals might give clues to Mr Driscoll’s whereabouts.
- [9]Other difficulties regarding the Post Office box were discussed by the Federal Magistrate in the company’s bankruptcy proceedings based on its judgment, DM Developments v Driscoll [2011] FMCA 464 (31 May 2011). According to Mr Stevenson (T page 7 line 40), the Federal Magistrates Court has within the last fortnight made a sequestration order “stayed for a period of 21 days, which is a further seven days after [hearing of the current appeal]”.
- [10]McDougall M on 12 October 2010 (T 4-5) indicated a disbelief regarding assertions by Mr Driscoll that he had posted things to the plaintiff (for example particulars and/or list of documents) on various occasions, implying that “misleading” was going on. He ordered that: -
- The Defendant’s Application is dismissed.
- The matter is listed for trial on 17 January 2011.
- The defendant provide, by Registered Post, the List of Documents, including ATO Portal, Tax Returns, Bank Statements, Centrelink documents, including the Defendant’s Centrelink file and all other documents relevant to the Defendant’s claim as to the existence of a contract of employment between the Plaintiff and Defendant by 29 November 2010.
- In default of the above, there will be judgment for the Plaintiff.
- Costs reserved.
No appeal was made against that order, to which McGill DCJ attached considerable importance in his reasons of 14 December 2011 (not 2 December 2011, as per the chronology), on Mr Driscoll’s appeal against Hutton M’s refusal to set aside the order of 30 November 2010 which the Deputy Registrar made in the following terms: -
“The Defendant not having complied with the Order of Magistrate McDougall dated 12 October 2010,
THE JUDGMENT OF THE COURT IS THAT –
- The Defendant pay to the Plaintiff the amount of $27,200, including interest to today; and
- The Defendant’s counterclaim is dismissed.”
- [11]Judge McGill construed the order of 12 October 2010 (against which, for some reason, there was no appeal – or even some application for variation) as importing the dismissal of the counterclaim as well as judgment for the plaintiff on its claim. This gave rise to an interesting res judicata issue, regarding which he said: -
“[32]Related to this was a question ventilated on behalf of the appellant, that the effect of the dismissal of the counterclaim was to produce a res judicata, so that the defendant could not in the future bring any other proceeding against the respondent in respect of the subject matter of the counterclaim. For the purpose of deciding whether to extend the time in which to appeal I was prepared to assume that the order was one which put an end to the defence and counterclaim in the current proceedings, and that that was a serious and significant matter. Apart from that, it does not seem to me that this issue arises in this proceeding..
[33]Whether or not the effect of the judgment dismissing the counterclaim is to give rise to res judicata is not an issue which will arise for decision unless and until the defendant seeks to assert in some other proceeding such a claim against the respondent. In those circumstances, it seems to me that the issue is really academic for present purposes. This argument seems to be based on the proposition that if the judgment of the registrar did give rise to a res judicata, this was a reason why it should be set aside even if the order of 12 October 2010 had not been complied with, but there was no general power on the part of the magistrate on 3 February 2011 to take such a course, and there is no appeal before me from the order of 12 October 2010. I have to proceed on the basis that the order was correct, and took effect according to its terms. In those circumstances the only issue is whether it was complied with. What the consequence of the judgment on the counterclaim is, is for present purposes academic, and therefore I should not say anything about it.
[34]The argument was advanced in reliance on the decision of the Court of Appeal in Mango Boulevard Pty Ltd v Spencer [2008] QCA 274. In that case the Court of Appeal dealt with the effect of a judgment on a counterclaim in default of compliance with a guillotine order as to disclosure in a context where the successor in interest of the party against whom that judgment had been given was seeking to avoid a res judicata. The matter was actually decided by the Court of Appeal on a different basis, but Muir JA with whom the order members of the court agreed expressed the view that there was a res judicata in the circumstances. If it were necessary for me to decide the point, that would no doubt be considerable persuasive authority, but I do not need to decide it and do not.”
- [12]When the company moved to stay the new claim in M 1328/2012, the issue was no longer academic only: it endorsed that res judicata approach to contend that the new claim was not maintainable. Her Honour rejected that argument, on the basis of a later decision of the Court of Appeal, Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 (in which Muir JA participated as a member of the Court). She said: -
“[25]I turn now to Mango Boulevard 2010. At paragraph [1] of Justice Muir’s reasons in that decision he stated his conclusions and reasons “are generally consistent with those of Fraser JA” but he considered it desirable to give reasons, albeit somewhat truncated, of his own.
[26]In that judgment, Fraser JA with whom White JA agreed, said at paragraph [113] that he agreed with the approach taken by Holmes J (as she then was) in Clout v Kelin [2001] QSC 401 at [28]. Fraser JA said:
“I consider that her Honour’s doubt (that a judgment obtained merely as a result of procedural default is capable giving rise to an estoppel) was well founded in relation to a judgment given for non-compliance with a party’s obligations of disclosure under the procedural rules or pursuant to an order for disclosure. Such a judgment involves no actual decision on the merits and its premise is that the procedural defaults of one party are so extreme as to justify the conclusion that the party has forfeited an entitlement to a decision on the merits.”
[27]At paragraph [114] his Honour continued –
“The authorities to the effect that a judgment arising from non-compliance with an order for discovery does not give rise to any issue estoppel are consistent with those decisions which established that the analogous case of judgment dismissing proceedings for want of prosecution creates no issue estoppel”.
[28]His Honour placed emphasis on the rationale for such a decision being that there has been no decision on the merits. At paragraph [116] Fraser JA applied the reasoning from Pople & Evans [1962] 2 Ch 255 at 268-269 which referred to the concern of the courts:
“… to limit the operation of res judicata to issues which can be fairly regarded or treated as having been disposed of by the order relied on their merits … It seems to me that the non-technical and substantial nature of res judicata “founded on the considerations of justice and good sense” he has no place for mere dismissal for want of prosecution”.
[29]Fraser JA took the view that that reasoning ought to be equally applied to a judgment given for non-compliance with obligations to disclose documents under procedural rules or pursuant to an order for disclosure. As he stated in paragraph [116]:
“The two different forms of order have a common foundation in conduct by a party which is so procedurally deficient as to justify summary termination of the proceeding without regard to the merits. Plainly such judgments do not involve any actual determination on the merits and I see no reasonable basis for treating them as determining the merits of any issue.”
[30]As I understand the submission of Mr Jarro for the applicant, he urges that I should conclude that there has been a determination on the merits. This is because of remarks made during the hearing before Magistrate McDougall because the Court had to consider in some detail whether there had been compliance with the order. At pages 4-5 of the transcript of the application before me, Mr Jarro refers to the transcript of the hearing before Magistrate McDougall when the order was made that led to the judgment being entered by the Beenleigh registrar (page 5 L 17). On page 6, Mr Jarro refers to the appeal to the District Court and to the counterclaim which was “squarely before his Honour Judge McGill when considering the appeal”.
[31]Although the judgment came about following the exercise of a judicial determination, it was not a determination that looked at the strength or weakness of a substantive claim. In my view, it was not a determination on the merits.”
- [13]Mr Stevenson referred to numerous authorities establishing that strong circumstances indeed are needed to justify a court preventing a platintiff from having his claim adjudicated on the merits, such as Dey Victorian Railway Commissioners (1948) 78 CLR 62,91, cited in Custodial Limited v Greig [2005] 2 Qd R 115 at 127.
- [14]Like her Honour, I understood Mr Jarro to be contending that there had been a consideration of the merits; on my assessment that consideration had to do with the merits of Mr Driscoll’s conduct as a litigant in the Beenleigh claim rather than with the merits of his claim that he had been engaged to do work in return for promised benefits that were wrongly withheld from him.. Mr Jarro did not persist with the res judicata point at the hearing before me.
- [15]The argument on the appeal focused on her Honour’s granting the stay sought on the basis that pursuit of the new claim by Mr Driscoll constituted an abuse of process, that he has forfeited by his conduct of his counterclaim an entitlement to have it litigated a second time in the new claim. As her Honour noted at [33] of her reasons, “Mango Boulevard 2010” indicates a preference for examining whether there has been an abuse of process, rather than rely on res judicata or issue estoppel approaches, which may be inflexible and result in irretrievable loss of rights (per Muir JA at [60]): there may be an abuse of process even if neither of those situations is established: per Fraser JA at [117].
- [16]Mr Stevenson, in contending that there was no abuse of process, all things considered, proposed that the factors indicated by Muir JA at [40] were relevant ones:
“[40]In the following passage from the reasons of Giles CJ in State Bank of New South Wales Ltd v Stenhouse Ltd,[2]quoted with approval by Chesterman J in Mango Boulevard Pty Ltd v Spencer & Ors[3]and by Wilson J in Frikton v Plastiars,[4]some of the matters relevant to a consideration of whether particular conduct constitutes abuse of process were usefully identified:
“The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –
a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
b)the opportunity available and taken to fully litigate the issue;
c)the terms and finality of the finding as to the issue;
d)the identity between the relevant issues in the two proceedings;
e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –
f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”
- [17]Judge McGill’s reasons summarise the background of the history of the Beenleigh proceeding, sufficiently established before me by Ms Thorp’s affidavits (and exhibits), which I consider relevant, as did his Honour:
“[21]The matter was argued before the magistrate on the basis that what mattered was whether substantial compliance with the earlier order had been achieved by the appellant. No authority was cited to me that the relevant test was whether the order had been substantially complied with, but I am prepared to proceed on the basis that it was. The magistrate in giving reasons for the decision the subject of the appeal, to refuse to set aside the judgment, found that the appellant had failed to supply the tax returns, and that by providing only what he described as edited bank statements he had not provided the bank statements he had been ordered to provide, and for those reasons “this was too little too late”, and therefore the application was dismissed.
[22]In response to a request for clarification by counsel for the appellant, he confirmed that he was dismissing it for substantial non-compliance. In effect, he rejected the argument of the appellant, that what the appellant had done amounted to substantial compliance with the earlier order so that the finding of the registrar to the contrary was wrong and there was no justification for giving the judgment, so it should be set aside. He found that there had been a substantial failure to comply with the order by the failure to provide tax returns and proper bank statements. The magistrate did not rely on a failure to provide the Centrelink file or the tax portal, so he may be taken to have assumed those aspects in favour of the appellant.
The Appeal
[23]It was submitted before me that the magistrate had erred in finding that the defendant had failed to comply with the order of 12 October 2010. There were two aspects to the failure found by the magistrate: providing bank statements which were substantially blanked out, and failing to provide tax returns. That there were relevant tax returns is confirmed by the fact that three tax returns were identified in the list of documents which were provided under cover of the appellant’s letter received on 30 November. There was an issue before the magistrate as to whether the appellant had also provided copies of those returns, but the magistrate resolved that issue against the appellant. As I have pointed out, the appellant’s evidence that he had provided copies of the tax returns was unsatisfactory, he did not provide details and he did not exhibit copies of the tax returns said to have been provided. He also did not produce copies at the hearing, though he offered to provide them in the immediate future. I was told that in fact no copy tax returns were provided after the hearing either, up until the hearing of the appeal, nor has anything else been provided for that matter.
[24]It is not entirely clear to me from the transcript that ultimately counsel for the appellant before the magistrate was pressing the proposition that the tax returns had in fact already been provided. He seems to have moved to the alternative position, that the appellant was in a position to provide the copies in the immediate future. That, however, would not have provided any justification for a conclusion that they had been provided prior to the expiration of the guillotine order. Overall in my opinion on the evidence before the magistrate he was entitled to come to the conclusion that the copies of tax returns had not been provided. I am not persuaded that he erred in arriving at that conclusion.
[25]In relation to the bank statements, there is no dispute as to what was provided, and the only issue is one of interpretation. The appellant did not raise before the earlier magistrate who made the order for provision of the bank statements any question about whether part of the bank statements was to be blanked out, and there was nothing in the order qualifying the nature of the copies to be provided in any way. Although in some circumstances documents provided on disclosure may be properly blanked out, for example letters part of which are open and part of which are without prejudice, or part of which are covered by legal professional privilege and part of which not, ordinarily considerations of privacy are not relevant to obligations to make disclosure of documents for the purposes of litigation. There are limits on the use to which disclosed documents may properly be put, and generally courts proceed on the basis that that is a sufficient safeguard for the rights of the party making disclosure.
[26]In my opinion it is obvious that, if bank statements are relevant for the purposes of disclosure what must be disclosed is the entire bank statement even if it be the case that only particular entries are relevant. What has to be disclosed is a document, but the basis of the disclosure is that the content of the document includes at least something which is relevant and satisfies the test for disclosure. In my opinion what was provided by the appellant by way of copy bank statements did not amount to proper disclosure of the bank statements. Not only has it not been shown that the magistrate’s finding on that was wrong; in my view it was quite right.
[27]The remaining issue is whether failure to provide those two categories of document amounted to substantial non-compliance with the earlier order, or as it might equally be expressed, whether what the appellant did amounted to substantial compliance with the earlier order. The magistrate found that there had not been substantial compliance, and I agree.”
- [18]Is the company to be afflicted by a relitigation of the claim (counterclaim in Beenleigh) in a way that may be “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment” – to quote the joint reasons in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 94. The late prevision of necessary particulars, which occurred only at the hearing before Kucks AM (see exhibit 1) is but one more instance of a pattern of litigating in an uncooperative, trouble-generating way from the standpoint of the adverse litigant.
- [19]Mr Stevenson submits that Mr Driscoll’s claim should be allowed its day in court, as every plaintiff would expect, that what has happened in the past that seems untoward (for some of which there are plausible explanations, he said) is insufficient to disentitle his client; in other words, he may have mucked up in his first tilt, but it should not be anticipated he will do the same in his second. Unfortunately, he has started out badly. The statement of claim, perhaps filed in haste in aid of the exercise underway in the Federal Magistrates Court that day, is defective being devoid of the particulars of the claim made, which self-evidently (and as determined by the Beenleigh Magistrates Court) were essential. There are other blemishes, such as Mr Kashani-Malaki being described as a director of the plaintiff.
- [20]Mr Driscoll had his chance to pursue his claim in the company’s proceeding. The Magistrate determined that he should not be given another chance, that proceeding again amounted to abuse of process. The last section of her reasons in my view shows her approaching the issue appropriately, considering the relevant matters, and relevant matters only:
“[38]In the Beenleigh proceeding, Mr Driscoll’s attitude to obligations imposed as a party to litigation can be seen outlined in the decision of McGill J in the District Court Appeal. Various paragraphs set out the recalcitrant attitude of Mr Driscoll; these are extracted in Appendix A.
[39]One could take the view that the plaintiff’s lax attitude to the Beenleigh proceeding may not continue if he were allowed to continue to pursue the Brisbane proceeding. Certainly, he was tardy in the Beenleigh proceeding in dealing with his obligations under the Uniform Civil Procedures Rules (including being late with the filing of his Notice of Appeal). He seems to have little understanding of a litigant’s obligations and was given many chances to comply with those obligations. The current statement of claim is deficient and, as noted contains errors and is not sufficiently particularised. Whether that is the fault of the plaintiff personally, or his solicitors, is unclear. The delay in having that remedied is likely to further vex DMD.
[40]The plaintiff’s claim in the Brisbane proceeding is for significantly more than the judgment obtained against him in the Beenleigh Magistrates Court. The current claim includes the amount of the judgment against him as a result of DMD’s alleged breach of agreement. The judgment amount has not been paid (see paragraph 8 of affidavit of Tracy Thorp, the sole director of DMD). There is a strong overlap between what was sought in the counterclaim in the Beenleigh matter and what is sought in the Brisbane proceeding. Mr Driscoll had multiple opportunities to advance his claim, but failed to do so in a timely way, responding insufficiently to court orders which DMD had to seek. The court’s time was taken up with applications aimed at achieving compliance with procedural rules designed to clearly identify for the opposing party the case it was required to meet and to facilitate a trial being able to be held expeditiously and efficiently.
[41]The defendant has not filed any material in response to the application. There is nothing before me which compels the conclusion that Mr Driscoll’s approach would be any different in the Brisbane proceeding. In my view, it is not enough that he merely has ‘an arguable case’. Use of the court’s resources is a factor I am entitled to take into account and I do so. As noted by Newnes JA in Brocx v Hughes and extracted above:
“Parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute and must be afforded a sufficient opportunity to resolve their dispute by that process. But that opportunity is not unlimited.”
[42]For the reasons given, I am satisfied that the Brisbane proceeding is an abuse of process and it is appropriate to stay at the proceeding.
[43]DMD’s basis for the application to stay the proceedings was on the doctrine of res judicata. I did not accept that that doctrine provided a basis for staying the proceeding.”
- [21]The authority mentioned, Brocx v Hughes [2010] WASCA 57 is helpful. It is a decision of the Court of Appeal (WA). Reflecting what occurs here, the plaintiff’s first action was dismissed for failure to comply with a “springing order” (i.e. at guillotine order like McDougall M’s). After unsuccessful appeals, the plaintiff started a new action, which was struck out by a Master as an abuse of process, correctly so said the Court of Appeal. Newnes JA’s reasons contain a helpful review of Australian and English authority, and note that in both countries a change of culture has occurred whereby “there is now a much greater focus on the effect that the way in which parties conduct litigation has on the court and other litigants, by reference to Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in particular. The reasons set out principles which (like her Honour) I accept:
“[97]Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition. It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again. It would bring the administration of justice into disrepute, and be ‘productive of serious and unjustified trouble and harassment’ to the defendant, if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them. To the extent that statements in older cases, including Birkett v James and Tolley v Morris, may be understood to suggest that such a party is entitled as of right to prosecute a fresh action, I would not follow them. The High Court pointed out in Batistatos [5]
The ‘right’ of the plaintiff with common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.
[98]Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party’s conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred to suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. (I think that for all practical purposes ‘contumelious’ and ‘contumacious’ have generally been used interchangeably in the cases as denoting a wilful and obstinate resistance or disobedience to authority.) As Heydon JA (as his Honour then was) pointed out in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274:
A satisfactory explanation on affidavit might negate an inference that the plaintiff’s defaults were not [sic] intentional or contumelious. But the absence of any explanation permits that inference to be drawn.
[99]In this case it was argued on behalf of the appellant that it was for the respondent to show that the appellant’s conduct in the first action was contumacious. I accept that is the case but the particular circumstances which led to default occurring will generally be a matter peculiarly within the knowledge of the defaulting party and their solicitors. It is so in this case. In the absence of a credible and satisfactory explanation by the appellant as to how the default came about, the court is entitled to infer that the conduct concerned was contumacious.”
- [22]Mr Driscoll’s (unsworn) explanations (of being a self-represented litigant, fearful of revealing his whereabouts, etc) are not satisfactory: he has never improved his disclosure of bank statements or made tax returns available at all. An earlier helpful review of cases is found in Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173, in which a second action was allowed to proceed in circumstances where conduct and abandonment of the first action were not contumacious, having occurred on counsel’s advice, and where a relevant indemnity for costs of the new action (with security) was offered. Mr Driscoll has made no similar offer to protect the company against the costs of a second, unnecessary proceeding, let alone pay the judgment amount or costs ordered in the first one. He would appear to be without financial resources in any event. Mr Stevenson told the court as much, and that his appearance was pro bono.
- [23]The apparent strength or weakness of a claim would in my view be a relevant matter in determining whether a proceeding ought to be stayed as an abuse of process. Loss of an apparently good claim is more concerning than the loss of a shadowy one. The court should avoid imposing what is in effect a penalty that is inappropriately harsh. Mr Stevenson submits that the claim is so promising that summary judgment could be obtained. According to his filed outline:
“iv.The Applicant has a very strong case on the merits. His case is essentially that he is owed monies for work he performed as an accountant for DM Developments.
- In the present proceedings, no defence has been put to the court and there is no evidence of what might be contained in such a defence.
- In the previous proceedings, DM Developments maintained a defence that Mr Driscoll never performed any work for them. However, note that:
a)In R v Kashani-Malaki [2011] QSC 308, Morteza [sic] McMurdo J at [16] states:
Mr Driscoll also gave evidence that his analysis of appellant’s bank records and financial records did not suggest any unexplained income.
b)Further, the transcript of the actual proceedings clearly shows that Mr Driscoll was employed by the Applicant and carried out significant work for the Applicant (See P11-43 at pp50)
c)Further, in magistrate’s court committal proceedings where DM Developments current director, Ms Tracy Thorp was committed on stealing charges, it was specifically put, (by Ms Thorp’s barrister, on Ms Thorp’s instructions), to Mr Driscoll that he performed work for DM Developments. In these circumstances, it would seem that Mr Driscoll not only has strong prospects of success, but that he also has some prospects of obtaining summary judgment in this matter.
- [24]As to the above, 1 is beside the point. Presumably the substance of the missing defence would accord with the reply and answer filed in the Beenleigh proceeding on 23 April 2010. It denies any employment relationship between the company and Mr Driscoll. The procedure adopted in responding to the new claim precluded the filing of a defence.
- [25]As to 2a, the references in which should be to [2010] QCA 222 and McMurdo P, the President was merely recounting the course of evidence at a trial. The appellant/Applicant being the accused, rather than the company, it is drawing rather a long bow to conclude that Mr Driscoll worked for it, rather than for the appellant. There was no evidence to confirm the assertions in b and c. Mr Driscoll must accept the consequences of that lack of evidence. There was simply no evidence whatever to support his claim before the Magistrate, and no attempt was made to tender any in this court on the appeal, for all of the assertions made that there were documents, even agreements, that could be produced. No objection was made to the tender of exhibit 1, whose purpose was not to confirm the claim, but to offer an explanation for the inadequate disclosure of bank statements. The point of these comments is that the opportunity to indicate by evidence that the claim was good was passed up. We are left with unparticularised pleadings which of course are not sworn to, as is required in some jurisdictions. By way of contrast, Ms Thorp’s later affidavit exhibits an executed Tenancy Agreement.
- [26]I am alive to the gravity of shutting Mr Driscoll out. It is impossible to say he has no claim. If I had been in her Honour’s role, I might conceivably have allowed the claim to proceed on conditions such as the statement of claim being got in order and actual payment of the costs ordered and/or wasted or “thrown away” in the Beenleigh proceeding, if there is to be a Brisbane one too. That would have been a defensible exercise of the rule 16 discretion. But so is her Honour’s, as her careful reasons show. The outcome is harsher for the “recidivist” plaintiff than similar cases in the Litigator’s Toolkit such as Colinton Station Pty Ltd v Ambulabat Pty Ltd [2006] QDC 130 and Sail Isle Pty Ltd v Body Corporate for Surfers Aquarius [2006] QDC 109. An example of a successful appeal against a stay is Williams v Zupps Motors Pty Ltd [1990] 2 Qd R 493. The principles governing appeals against the exercise of a discretion mean that this one must be dismissed, and with costs to be assessed if not agreed.
Footnotes
[1]The counterclaim filed 2010 makes a point of pleading the former director’s incarceration for a sentence of 13 years in June/July 2009 and romantic involvement with his successor. It also in paragraphs 4 & 5 asserts entitlement to the rented premises at 3/150 Pascoe Road, Ormeau and the transfer of the vehicle.
[2][1997] Aust Torts Reports, 81-423.
[3][2008] QSC 117.
[4][2010] QSC 5.
[5] (2006) 226 CLR 256, 280